Australian Salaried Medical Officers' Federation (NSW) v State of New South Wales

Submissions

1. The primary tenants of ASMOF's submissions in support of the procedural application (and the Motion) were as follows: 1. Maintaining the existing procedures in the light of the settlement of the Fakhouri proceedings would be "unarguably unfair" and prejudicial to ASMOF. ASMOF was joined to the common question process, limited in the evidence it was entitled to have called on those questions and then made forensic decisions about his preparation for hearing on the assumption that the evidence in the Fakhouri proceedings would be called. To compel ASMOF to proceed to a hearing in circumstances where that evidence will not be before the Court and where ASMOF has not had a fair opportunity to prepare evidence of a similar type would produce the unfairness and prejudice contended by the ASMOF. 2. The prejudice could be cured by ASMOF having an opportunity to call the same or similar evidence to that filed by Dr Fakhouri in relation to the identified Merck questions. However, the breadth of the evidence led by Dr Fakhouri would mean that ASMOF could not possibly undertake that process within the time available for hearing. 3. If the presently allocated hearing days were vacated, it would be appropriate for the Court to consider afresh the manner in which the proceedings would go forward. There is no longer an imperative to avoid conflicting judgments or to avoid two hearings being conducted about the same issues. It was submitted that marching on to a Merck hearing with Fakhouri out all the picture is a case of "the tail wagging the dog." 4. In the absence of the Fakhouri proceedings, the better way for the Court to proceed was to program for hearing the claims concerning award contraventions with respect to Dr Sanderson only. The Court would determine whether Dr Sanderson was required to perform the additional work in each case and whether there have been award contraventions for him.
2. ASMOF contended that answering the questions arising from the Merck Order after the settlement of the Fakhouri proceedings was not the most efficient way to proceed because: 1. The questions for consideration under the Separate Question Order do not capture all of the issues in ASMOF proceeding. ASMOF's claims are not limited merely to claims of unpaid overtime, they also allege award contraventions by the failures of the defendant to implement procedures for claiming missed meal breaks; 2. So far as the Merck Questions address whether the doctors were "required" to work the additional hours (Questions 1, 4 and 5), if the identified Merck Questions are now determined for the purposes of all the claimants only by reference to evidence concerning Dr Sanderson, many of the Merck Questions will not be answered at all, or in any meaningful way; 3. In his affidavit affirmed on 13 November 2023 at [334], [5] Dr Sanderson, who was a radiology trainee at Royal Prince Alfred Hospital, identified the types of instances in which he worked additional hours. Only some of those instances fall within the scope of Merck Questions 1 and 4, which list a number of circumstances in which the unpaid overtime was alleged to have been required. A large number of the instances in the Questions are not relevant to Dr Sanderson, although they did arise in respect of Dr Fakhouri and her peers, and arise in respect of other employees the subject of ASMOF's claim. For example, Question 1(b), concerning transfer, does not arise in respect of Dr Sanderson, who did not have ward custody of patients in the same way as Dr Fakhouri and her peers, who were based primarily on the wards. The same is true for Questions 1(d), (e), (f) and (g). Dr Sanderson did not do "ward rounds". Equally, not all of the circumstances in which Dr Sanderson was required to work additional hours are contemplated in Merck Questions 1 and 4; 4. Although Question 5 of the Merck Orders poses a series of broader descriptions of the circumstances in which a doctor may have performed additional work, it asks "the extent to which such considerations are relevant" in determining whether the doctor has been "required" to be in attendance, and will likely produce an answer in the most general terms; 5. As a consequence, no individual doctor's claim of liability will be determined to finality by the hearing (as was initially envisaged, where Dr Fakhouri's claims were to be determined). Instead, there will likely need to be further hearings in relation to claims concerning circumstances not specifically addressed by the answers to the identified Merck Questions, or to interpret general answers, and then further hearings to determine consequential orders, a remedy and penalty.
3. As the alternative approach of determining Dr Sanderson's claims of finality, it was submitted that the Court would be required to answer the following: 1. Whether Dr Sanderson was required (within the meaning of the Awards) to do the additional work to which he avers. In doing so, the Court will need to determine what the word "required" means within the Awards, and in considering the evidence, grapple with the sort of arguments concerning organisational context and professional responsibilities that were addressed in Australian Salaried Medical Officers' Federation v Peninsula Health [2023] FCA 939. In doing so, the Court will determine the question of construction and the relevant principles for the purpose of the entire proceeding; 2. The question that appears at 14 of the Merck Questions is whether, as a matter of law, the doctrine of estoppel could operate to curtail or extinguish his award entitlements. The answer to that question may conclusively determine the State's defence. If the answer to that question is yes, the Court will determine whether that doctrine operates in Dr Sanderson's case.
4. It was then submitted that, if that approach was adopted, the Court could hear the Temporary Employment Claim concurrently with the ASMOF proceedings the Temporary Employment Claim and undertake a concurrent hearing which could occur over 11 days commencing on 10 June 2024.
5. The Temporary Employment Claim turns primarily on the construction of the relevant award provision and would require limited evidence about Dr Sanderson's contractual arrangements and whether he was paid the temporary loading which evidence is largely already adduced in the evidence in the present proceedings, although, it was acknowledged that the defendant is yet to file a defence in these proceedings. Nonetheless, ASMOF anticipated that the defendant's evidence be similarly limited and could be conveniently prepared by the time to ASMOF's proposed start time of 10 June 2024.
6. The defendant submitted that it opposed the procedural orders. It was submitted that the matter should proceed to hearing of the existing separate questions by reference to Dr Sanderson (noting that the hearing of those issues is likely to require less than half of the existing six-week fixture). If, contrary to the defendant's primary position, the "different course" proposed by ASMOF is adopted, the existing hearing dates ought to be vacated.

CONSIDERATION

1. Before specifically considering the submissions in support of the procedural application and the Motion, it is useful to embark upon a further brief recitation of the history of the Fakhouri and ASMOF proceedings. In doing so, I note that a very substantial amount of material was produced by the parties in a Court Book dedicated to the procedural application ("the Procedural Court Book").
2. When Garling J made the September Orders, he had been case managing both sets of proceedings for about 18 months and had given two decisions as to interlocutory applications: Australian Salaried Medical Officers Federation (NSW) v State of New South Wales [2023] NSWSC 637 ("the Consolidation Decision") and Australian Salaried Medical Officers Federation (NSW) v State of New South Wales (No. 2) [2023] NSWSC 950 ("the Stay Decision").
3. In the Stay Decision, Garling J refused an application by the defendant to stay the ASMOF proceedings pending the outcome of the initial trial in the Fakhouri class-action. In that decision, his Honour referred to the submission advanced by ASMOF as follows (at [22] and [23]): "[22] As a matter of ordinary and conventional procedure, and the application of case management principles, ASMOF submits that there is no warrant to stay these proceedings. It submits that a stay for an indeterminate period in the hope that guidance will be provided by the representative proceedings without any estoppel being created is an unsound basis upon which to further the overriding purpose in s 56 of the Civil Procedure Act. ASMOF submits that considerable prejudice would occur to it and the identified employees because of the delay in having their claims determined and that such delay in having these proceedings brought to a hearing would be contrary to the purpose set out in Part 1 of Chapter 7 of the Industrial Relations Act 1996. [23] It also submits, but I do not accept, that a delay in these proceedings will undermine the opt out rights created by Part 10 of the Civil Procedure Act for individuals who choose to opt out of representative proceedings."
4. Without traversing the entirety of his Honour's reasoning in refusing the stay, particular attention in the present context may be given to the following aspects of his Honour's reasons at [30]-[34]: "[30] Having regard to all of the other matters to which reference has been made, and considering the entirety of the matters before me, I refuse the order sought. Principally I do so because the delay envisaged by the order is likely to be considerable. Whilst it is undefined, a reasonable assessment would suggest that any finalisation of the representative proceedings of the kind the State relies upon is at least two years away from now, if not longer. After that period, the parties would then need, having emerged from hibernation, to recommence preparation for a hearing in this matter which, as I have just indicated, would be likely to occupy a period of a further 12 months or so. Such an undefined delay involving at least three years is not consistent with the statutory context of Part 6 of the Civil Procedure Act and, in particular, with the overriding purpose set out in s 56. [31] The effect of the order for a stay would also preclude sensible case management steps being taken of a kind which might see, through by way of example a Part 28 separate question procedure, ASMOF participating meaningfully in the determination of the common questions defined by the Merck orders during the representative proceedings hearing, and obtaining the benefit for both parties in these proceedings of having the answers to those questions, insofar as they are common, constituting binding findings in this proceeding also. [32] Further, the efficient use of time by the State to gather and prepare evidence to meet the evidence already filed by ASMOF in this case, which consists of 22 affidavits, will be lost if a stay is granted. The exploration of other case management orders, which would seek to give effect to the overriding purpose of the Civil Procedure Act in the context of this case by, for example, identifying possible sample group members, agreeing on how a case may be tried efficiently and when such a case could be heard would also be lost if a stay was granted. [33] Finally, the granting of a stay as envisaged by the State would put a halt on the capacity, having regard to the preparatory state of the proceedings, of the parties to engage in any meaningful mediation or conciliation process of an appropriate kind, because the parties will not have factually explored the basis of the claims which are advanced in these proceedings. [34] I recognise that in coming to this conclusion there will necessarily be some prejudice to the State, particularly in terms of cost, time and resources. However, the cost, time and resources are likely to be needed to be engaged in, in any event, and particularly more likely to be engaged in if there is no binding finding arising out of the determination of the representative proceedings."
5. It is also necessary to recall that the case management procedures adopted by Garling J in the September Orders were made with ASMOF's consent as to the content of the questions, including their adequacy in capturing the scope of the issues that needed to be resolved in the ASMOF proceedings. No different suggestion has arisen since that time, although issues were raised by ASMOF as to how many of ASMOF's specified employees should be the subject of those questions and the extent of ASMOF's opportunity to put on evidence.
6. Dr Sanderson, as the Specified Employee, filed and served an affidavit on 13 November 2023 and the evidence in response by the defendant consisting of 11 affidavits. That was done on the basis of the trial structured in accordance with the Separate Questions Order with respect to Dr Sanderson.
7. The Separate Questions Order reflected Garling J's observations in his Stay Decision about the appropriate case management of the proceedings as reflected.
8. Returning then to the submissions advanced by ASMOF in favour of the procedural application, it must be recognised at the outset that the vacation of the Separate Questions Order (made by Garling J over 6 months ago) would involve substantial change to the basis on which the proceedings have been case managed a short time before the trial is scheduled to commence. I agree with the submission of the defendant that the granting of the procedural application would necessarily mean vacating the existing hearing dates.
9. To that consideration, it may be added that it is most unlikely that the alternative dates sought by ASMOF would be available, not only because of the lack of availability of counsel for the defendant and available dates for the Court to sit in the hearing of the matter, but because the alternative procedures for the taking of evidence identified by the ASMOF will almost invariably affect a substantial delay.
10. However, the difficulties for the application by ASMOF to vacate the existing case management orders are even more fundamental.
11. The defendant accepted that each of the propositions advanced by ASMOF, as summarised in this judgment at [20], were correct. However, it does not follow that the answering of separate questions by reference to Dr Sanderson will provide for an unfair or inefficient hearing. Rather, I consider that that course remains a fair and efficient one and one consistent with the principles stated in ss 56 and 57 of the Civil Procedure Act 2005 (NSW) in all the circumstances, including the history of the proceedings, and taking into account the settlement of the Fakhouri proceedings.
12. As to the question of fairness, I accept the submission by the defendant that at all relevant times the Separate Questions Order in the ASMOF proceedings were to be determined by reference to Dr Sanderson and not Dr Fakhouri. The evidence in one proceeding was to be the evidence in the other, but as earlier mentioned, to the extent the determination of the Separate Questions Order depended upon matters of fact, they would necessarily have to be determined by reference to Dr Sanderson's circumstances, not Dr Fakhouri's circumstances. The settlement of the Fakhouri proceedings made no difference to this state of affairs.
13. As to the operation of the Separate Questions Order, ASMOF filed and served the evidence it relied on to address the separate questions by reference to Dr Sanderson. That is the very basis upon which ASMOF was going to hearing with respect to those questions and, again, the settlement of the Fakhouri proceedings does not change that fact.
14. There is no doubt that various, and sometimes competing, questions of efficiency of approach will arise in circumstances such as the present one. However, I agree with the submission of the defendant that the procedural processes remain efficient for the reasons articulated by Garling J in the Stay Decision. There is an efficiency in obtaining binding findings on issues of commonality where, in substance, the ASMOF proceedings is representative in nature, ASMOF representing 62 employees. It follows that answering some of the questions identified as common to those employees remains an effective way of seeking to advance such proceedings to resolution.
15. Differences of fact will emerge depending upon the nature of the work, the area of the work and the location of the work performed by particular employees, but the separate questions focus attention upon areas of commonality that do exist and help refine the scope of the issues in the proceedings and potentially their overall resolution.
16. It is true that some questions or issues may not be answered by reference to Dr Sanderson's circumstances alone, but in that event, the questions will simply not be answered. I accept the submission of the defendant that that possibility always existed, regardless of whether the Fakhouri proceedings were heard concurrently or not, and that Garling J expressly contemplated the same.
17. The application by ASMOF for an order that the whole issue of liability with respect to Dr Sanderson to be determined as a separate question and as part of the upcoming trial is, as previously mentioned, the corollary of the application by ASMOF to vacate proceedings conducted under the Separate Questions Order.
18. The adoption of such an approach would involve, in my view, the importation into the upcoming trial of issues not traversed by the questions from the Merck Orders in the ASMOF proceedings which the defendant has not addressed in evidence. Those questions involve the defendant's liability in respect of missed meal breaks beyond the pure issue of un-rostered overtime and the defendant's obligation to prepare meal break procedure.
19. The adoption of such a course would prejudice the defendant and, in order to alleviate that prejudice, the existing hearing dates would have to be vacated; that step itself causing prejudice as I will discuss below.
20. There is a further difficulty involved in considering the whole issue of liability in Dr Sanderson's case at this stage rather than addressing the Separate Question Order. Whilst I accept that a judgment on liability in Dr Sanderson's case may involve findings of general application, that approach will not necessarily involve deliberate focus on issues of commonality with the remaining represented doctors (as in the case of the Separate Questions). Furthermore, individual and fact-specific questions without clear implications for the proceedings as a whole, would not generally be determined separately: Southwell v Bennett [2010] NSWSC 1372 at [15] (Hallen AsJ).
21. It follows from these considerations that the application by ASMOF to vacate the Separate Question Order and, in lieu thereof, to hear the whole of Dr Sanderson's liability claim (separately from and in advance of the remainder of the proceedings) should be refused.
22. There is, however, a further consideration. ASMOF submitted that, if the Court determines to proceed with the Separate Question Order, ASMOF should be granted an opportunity rely on further evidence in the light of the resolution of the Fakhouri proceedings. The necessary consequence of this course, as recognised by ASMOF, would be to vacate the existing hearing dates and to fix further dates (in a date range proposed by ASMOF).
23. As a result of the September Orders, ASMOF filed and served four affidavits and three exhibits comprising a substantial number of pages. The evidence was substantial and appears to deal with the specific questions identified out of the Merck Orders in relation to Dr Sanderson and Dr Sanderson's individual claim, at a more general level.
24. It would appear that ASMOF has in mind, substituting in its own case some of evidence called in Dr Fakhouri's proceedings. However, ASMOF's position in that respect is not clear. That is, the nature and the extent of the proposed further evidence has not been precisely described by ASMOF.
25. I agree with the submission made by the defendant that there is no coherent explanation given as to why the settlement of the Fakhouri proceedings requires ASMOF to have the opportunity to supplement the evidence it has already filed and served in the proceedings. If it be evidence of a broader character bearing upon the specific questions out of the Merck Orders to be determined at the trial of the ASMOF proceedings, then it is not clear what that evidence is or why the evidence was not put on at an earlier time in ASMOF's own case.
26. If ASMOF sought to lead now evidence of the kind referred to in a summary of ASMOF's written submissions (as extracted at [20] above) then the plain effect will be to cause the vacation of the trial dates presently fixed in order to allow the defendant to respond to the further evidence in that respect.
27. I accept the submission of the defendant that, in those circumstances, it would suffer a prejudice because it would not be able to recover costs against ASMOF given the limited circumstances in which costs may be recovered in these proceedings. [6] Nor do I consider that that approach would be consistent, having regard to my earlier findings, with ss 56 and 57 of the Civil Procedure Act.
28. Nonetheless, if ASMOF intended to call evidence of an entirely general nature, directly relevant to the consideration of the issues arising under the Separate Questions Order (with respect to Dr Sanderson), consideration may be given to an application in that respect provided that the additional evidence is expressed with great specificity does not controvert the above rulings as to the further evidence and does not cause substantial prejudice to the defendant. This is not an invitation for ASMOF to simply seek to adduce evidence akin to the evidence in the Fakhouri proceedings in these proceedings, as discussed by ASMOF in its submissions summarised at [20] above.
29. Otherwise, I reject the application by ASMOF to call further evidence.
30. What remains of the procedural application and the Motion by ASMOF is the application for the Temporary Employment Claim to be heard concurrently with these proceedings.
31. The defendant gave some cogent bases for rejecting that approach, including that the Temporary Employment Claim was only commenced on 31 January 2024, a defence has not been filed by the defendant in that respect at this stage and the issues with respect to the Temporary Employment Claim were arguably different to those within the ASMOF proceeding, at least to the extent that there is an alleged contravention of a different award, namely, the Health Industry Status of Employment (State) Award.
32. However, it is unnecessary to finally resolve those issues because ASMOF's written submissions make clear that the application to have the Temporary Employment Claim (and by extension its application in the Motion) heard concurrently with these proceedings was only proved on the basis that the Court was minded to adopt what is described in paragraph E of the written submissions as the "More Efficient Way to Proceed" including the hearing of the question of whole issue of liability with respect to Dr Sanderson's claim. The Court has not adopted that approach, and accordingly the condition upon which the ASMOF makes the application has evaporated.
33. I have decided then with respect to the procedural application (and the Motion) that the Temporary Employment Claim to be heard concurrently with these proceedings should be refused. So too should the application to set down a concurrent hearing of those proceedings for 11 days commencing 10 June 2024.
34. The defendant also raised the issue of ASMOF's application to amend the Third Further Amended Statement of Claim. However, this issue was not contemplated to be part of the interlocutory process resulting in this judgment. Accordingly, no submission was made by ASMOF in its written submissions on that question. The issue will, therefore, be held over for further consideration.
35. Putting aside, the further questions as to discovery, which will be the subject of a separate but concurrent judgment, there remains a question as to other case management orders, in addition to those made by the Court on 6 March 2024.
36. The defendant has proposed orders for a real-time transcript and a Court Book which are found at p 479-480 of the Procedural Court Book. At an earlier point in time there was a dispute as to some part of those orders. In the event that there is an agreement as to those basic procedural orders they can be incorporated in the Short Minutes of Order which will be produced in consequence of this decision. In the event there is a dispute as to that question, the parties should make written submissions in accordance with the conclusion and Directions below.
37. There remains by this judgment the question of limited additional evidence being adduced by ASMOF. If there is agreement in this respect, then, again, the draft directions can be incorporated in the aforementioned Short Minutes of Order. Alternatively, any dispute should be addressed in accordance with the conclusions and Directions below.
38. As mentioned, there is also a judgment which will be delivered concurrently with this judgment in relation to the question of discovery. Having regard to the parties renewed (shorter) estimate for the hearing of this matter after the Fakhouri settlement, the Court will give consideration to whether the matter should commence on 6 May 2024 or some delayed commencement no more than two weeks are from that date (on an estimate of 2-3 weeks), provided the trial will finish comfortably within the existing range of dates. This could potentially allow a greater opportunity to address the procedural rulings in this judgment.

Conclusion

1. The defendant should bring in Short Minutes of Order in the following respects after conferring with ASMOF: 1. Reflecting this judgment; 2. Incorporating any consent orders as to further procedural matters by reference to the defendant's Short Minutes of Order at p 479-480 of the Procedural Court Book. Alternatively, the parties shall file and serve written submissions as to the form of orders which should be made in that respect (with a one-page limit). 3. ASMOF providing to the defendant a short list of any additional general evidence it would seek to bring in, limited by the terms of this judgment. In the event of a dispute as to the proposed additional evidence or evidence in reply, the parties should file and serve written submissions as to the resolution of that issue (no longer than 2 pages in length). [7] 4. Any agreed alternative commencement date consistent with this judgment (and noting the separate judgment in discovery). In the event of any dispute a note should be produced recording the parties' respective positions. 5. Written submissions in accordance with (2) above and the note required in (4) (in the event of disputes) should be filed no later than 12 noon, Thursday 11 April 2024. Submissions by ASMOF (including any evidence sought to be called) in accordance with (3) above shall be filed and served by the same date and time. 6. The matter should be listed for a directions hearing conducted via AVL at 4.00pm Thursday 11 April for half an hour (the Court will consider the parties submissions in advance of the directions hearing).

DIRECTIONS

1. The Court makes following directions. 1. The defendant shall bring in Short Minutes of Order in accordance with this judgment. 2. The matter shall be listed for directions at 4.00pm, Thursday 11 April 2024.

Endnotes

1. The last iteration was the Third Further Amended Statement of Claim but the plaintiff has applied to further amend that claim.
2. From the Public Hospital Medical Officers Award 2015 through to the Public Hospital Medical Officers (State) Award 2021 ("the Awards").
3. This was a representative proceeding but only Dr Fakhouri's individual claim was to be determined and not the claim for the Group Members in this respect.
4. Orders 2 and 3 of the September Orders.
5. Discovery CB, Vol 2, Tab 8, p 469.
6. See s 357(6) of the Industrial Relations Act 1996 (NSW).
7. The defendant will file such submissions after the directions hearing referred to below. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 April 2024